TERMS as per NCS invoice:
– All payments are due upon receipt.
– ACH is debited (Monday) the 3rd week of the month (allow up to 4days ACH processing).
– If a payment is not received or payment method is declined, the buyer forfeits the ownership of any items purchased.
– Any unpaid balance after the due date may be subject to a late payment charge per your contract.
– All sales final. A 1.9% processing fee will apply to all credit card purchases.
– ACH: no charges for Auto-ACH or ACH via online portal.
When an invoiced item indicates “*”:
*With payment of this invoice client agrees to the above mentioned services and/or items and consents to the terms, policy(s) and/or EULA as specified via online terms – see below.
*Upon expiration of [indicated] item’s discount the continued payment of the related recurring invoice provides client’s consent and acceptance of said item.
These terms and conditions are subject to change.
Terms/EULA: as related to the “MSP Complete Care Agreement” or as titled NCS (NCSi Inc.) “MSP Agreement”: Should client elect to notify NCS (NCSi Inc.) of their intent to not renew the MSP Complete Care Agreement (and having done so within the provided agreement parameters), said “notification not to renew” shall be valid for a period of 60 (sixty) days. If no further action or written timeline of separation has been conveyed by the client to NCSi (via mail or email sent to: firstname.lastname@example.org with Delivery Acknowledgement) said period of ‘notification-not-to-renew’ shall have expired. Upon the 61st day, to ensure ongoing business support and continuity of service(s) provided, the original agreement shall therefore automatically be reinstated, deemed valid and “renewed” as per the renewal-term of the agreement. Acceptance of this reinstatement shall be additionally evidenced by the client’s ongoing payment of future invoices with terms described. Termination: If Customer terminates this Agreement or all or any part of the Services at any time after the Effective Date, or if NCSi Inc. terminates this Agreement as a result of Customer’s breach, NCSi Inc. may charge Customer an early termination fee equal to and including any or all of the following: 100% of the total MRC, surcharges and taxes for the Services Term then remaining, plus any unpaid activation, installation and/or special setup charges, and all other fees or costs, whether previously waived, provided as promo or discount, or not, less amounts already paid. Customer acknowledges that NCSi Inc.’s damages for early termination would be difficult to determine and the termination charge(s) constitutes liquidated damages and are not intended as a penalty but as a mutually-agreed upon amount representing, but not limited to, lost revenue, proportionate or actual third party costs and capital expenditures, and internal costs. All such amounts will become immediately due and payable by Customer to NCSi Inc. See also item “2 n”.
Applies to Hosted & MSP Services Agreement:
By signing-up, purchasing or utilizing services from NCSi Inc. you agree to be bound by this agreement.
This agreement (“Agreement”) is entered into by and between the subscriber, its affiliates and subsidiaries, (“Subscriber”) and NCSi Inc. (“NCSI”), with principal offices located at 610 W. Meeker St. Suite 201, Kent WA 98032 (collectively, “Parties”) and shall be effective when Subscriber completes a sign-up, order or other form, including request for services via e-mail, fax or other means. signed by the Parties (“Effective Date”). Except for any conflicting or varying terms in any order form (“Order Form”) or addendum (“Addendum”) (which specifically reference this Agreement), the terms set forth in this Agreement govern NCSI’s obligations to Subscriber and Subscriber’s rights with respect to any NCSI services to be provided in conjunction with any NCSI technology made available to Subscriber by NCSI.
WHEREAS, NCSI offers services by which end users (such as Subscribers and their customers) can utilize various technology solutions for their business which allow those users to increase the efficiency and productivity of their business operations;
WHEREAS, NCSI develops and licenses certain software and technology, and makes available to Subscriber via the Internet in connection with the provision of the foregoing services;
WHEREAS, Subscriber would like to license NCSI’s software and services in exchange for the payment of license fees to NCSI;
THEREFORE, in consideration for the promises set forth herein, the parties agree as follows:
a. “Affiliate” means, with respect to an entity, any person or entity that directly or indirectly owns, is owned by, or is under common ownership with that entity. For purposes of this definition, ownership means control of more than a 50% interest in an entity.
b. “End User” means any user of NCSI services be they employees, Affiliates, clients or other persons or devices associated with Subscriber.
c. “Agreement” means (i) this Hosted Services Agreement, (ii) any policies or procedures referenced in this Agreement, (iii) any applicable Order Forms, and (iv) any exhibits attached to this Agreement.
d. “Company Materials” means any equipment or other tangible materials, software, source code, documentation, methodologies, know how, processes, techniques, ideas, concepts, technologies, data and/or any other information that is provided by NCSI to Subscriber in connection with any Services or Order Form. Company Materials does not include any Source Code as defined and/or listed in License Forms, if any, between the parties; “License Form” is defined in the Master Source Code Agreement, if any, between the parties, and describes Subscriber’s right to use any Source Code.
e. “Service” means the services that NCSI will provide or perform under this Agreement.
f. “Company IP” means NCSI’s pre-existing or independently developed proprietary tools, processes or intellectual property.
g. “Log-in Information” refers to the user name, password and log-in information provided to Subscriber and/or End Users by NCSI.
h. “NCSI Technology” includes any components of Service provided to Subscriber, the Site or reports, and components thereof, and any Software, hardware, Log-in Information, or any other material accompanying Service.
i. “Site” refers to websites, including any password protected portion thereof, through which NCSI makes available Service to Subscriber.
j. “Software” refers to any software made available to Subscriber by NCSI.
k. “Subscriber Data” refers to any data, information or material that Subscriber or associated End Users make available to NCSI in connection with NCSI’s provision of Service.
l. “Order Form” refers to any method by which Subscriber requests NCSI to provide Services including but not limited to paper forms, online forms and e-mail.
2. MSP SERVICES GENERAL TERMS AND CONDITIONS
a. Services. NCSI agrees to supply Service in accordance with the terms of this Agreement. Subscriber agrees to receive Service from NCSI in accordance with the terms of this Agreement.
b. Other Services. Upon request by Subscriber, NCSI may at its option, provide Subscriber with technical and non-technical support, such as equipment reboots, troubleshooting, DNS and other support (“Other Services”), in connection with Subscriber’s use of Service. Unless the Parties agree otherwise, Subscriber will pay for such Other Services in accordance with the Technical Support Services section of this Agreement. Subscriber may request Other Services by e-mail, online form, phone, or other means as designated by NCSI.
c. Term. The Term of this Agreement will commence on the date signed by Subscriber or the day the Subscriber’s first Service is provisioned, whichever is first, and will continue thereafter for five (5) years, unless terminated by either party as permitted by this Agreement. This contract shall automatically renew for a period of subsequent one (1) year periods unless written notice is provided by either party to the other at least 60 days prior to the expiration date, in which case the contract will expire on said expiration date.
a. Customer will pay NCSI Recurring Monthly Fees specified on Order Forms or other agreement, as well as any charges for Other Services.
b. All Recurring Monthly Fees will be payable monthly in advance. Monthly Fees for Storage and charges for Other Services, which are not billed as Recurring Monthly Fees, will be payable monthly in arrears.
c. All amounts will be payable on net 10 day terms.
e. Acceptable Uses. Subscriber or its authorized representative may use the Software, Site, Service, only for business purposes and shall not: (i) send spam or other duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of Service or the data contained therein; (v) attempt to gain unauthorized access to the Site or Service or its related systems or networks; (vi) use Service for any improper or illegal purpose; or (vii) use Service in a manner inappropriate for the Subscriber Data.
f. Subscriber Responsibilities. Subscriber shall be responsible for all activity occurring under Subscriber’s or associated End User’s Log-in Information and account. Subscriber shall: (i) notify NCSI immediately of any unauthorized use of any Log-in Information or any other known or suspected breach of security; (ii) report to NCSI immediately and use reasonable efforts to stop any copying or distribution of Software or Services that is known or suspected by Subscriber; and (iii) not impersonate another NCSI Subscriber or provide false identity information to gain access to or use the Site, Software or Service. Subscriber shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with use of the Site, Software, or Service, including those related to data privacy, international communications and the transmission of technical, personal, financial, health, or other private data. Subscriber shall promptly pay all fees when due.
g. Subscriber Data. NCSI does not own the Subscriber Data, the rights to which shall be retained by Subscriber, Subscriber’s associated End User or its respective owner. Subscriber, not NCSI, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Subscriber Data, and NCSI shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Subscriber Data. Additionally, Subscriber shall ensure that the Subscriber Data is transmitted to NCSI in a secure manner with the appropriate level of encryption for the type of data contained in the Subscriber Data. In the event this Agreement is terminated (other than by reason of Subscriber breach), NCSI will make available to Subscriber a file(s) containing the Subscriber Data within 30 days of termination if Subscriber so requests at the time of termination. NCSI reserves the right to impose a nominal fee for providing this file(s).
h. Intellectual Property Ownership. NCSI alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the NCSI Technology, and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Subscriber or any other party relating to the NCSI Technology. This Agreement is not a bill of sale and does not convey to Subscriber any rights of ownership in or related to Service, Site, Software, the NCSI Technology or the Intellectual Property Rights owned by NCSI. The NCSI name, the NCSI logo, and the product names associated with the NCSI Technology are trademarks or service marks of NCSI or third parties, and no right or license is granted to use them.
i. Third Party Products and Services. During use of Service, Subscriber may encounter products, services and/or advertising, offered by third parties not affiliated with NCSI. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between Subscriber and the applicable third-party. NCSI and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between Subscriber and any such third-party. NCSI does not endorse any sites on the Internet that are linked through the Site or Service.
j. Modification of Fees. Notwithstanding anything to the contrary in this Agreement, NCSI reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least thirty (30) days prior notice to Subscriber, which notice may be provided by email or via the Site. All pricing terms are confidential, and Subscriber agrees not to disclose them to any third party.
k. Accuracy of Billing Information. Subscriber agrees to provide NCSI with complete and accurate billing and contact information. This information includes Subscriber’s legal company name, street address, email address, and name and telephone number of an authorized billing contact and license administrator. Subscriber shall update this information within 15 days of any change. If the contact information provided by Subscriber is false, fraudulent, or inaccurate, NCSI reserves the right to immediately terminate access to Service in addition to any other legal remedies it may have.
l. Credit Authorization. Customer hereby authorizes NCSI and gives consent to NCSI under applicable privacy laws for NCSI to obtain credit information and bank and other financial references regarding Subscriber for the purposes of assessing Subscriber’s credit worthiness, and Subscriber will promptly execute and deliver to NCSI such further documents and assurances and take such further actions as NCSI may from time to time reasonably request in order to carry out the intent and purpose of this Section.
m. Invoice Disputes. If Subscriber believes any invoice is inaccurate, Subscriber must contact NCSI in writing within forty-five (45) days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. If Subscriber fails to object to an invoice within forty five (45) days of the invoice date, Subscriber waives the right to contest any charges in such invoice.
n. Suspension of Services / Termination request: In addition to any other rights granted to NCSI herein, NCSI reserves the right to suspend or terminate this Agreement and Subscriber’s access to Service or Site if Subscriber’s account becomes delinquent (i.e., Subscriber fails to pay any invoice within thirty (30) days of the invoice date) or if Subscriber is in material breach of this Agreement (which remains uncured for ten (10) days. Subscriber waives any claims against NCSI based on interruption of business due to termination of Service or access to the Site. Delinquent invoices (accounts in arrears) are subject to a late fee of seventy-five dollars ($75) per month per invoice, along with interest of 2.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Subscriber will continue to be charged for licenses during any period of suspension. If Subscriber or NCSI initiates termination of this Agreement, Subscriber will be obligated to pay the balance due on account. If the account is not brought current prior to the renewal date of the agreement, the agreement shall continue as if no notice-of-termination had been submitted.
o. Reconnection Fee; Subscriber Data. NCSI reserves the right to impose a reconnection fee in the event Subscriber’s access is suspended and thereafter requests resumption of access to Service. Subscriber agrees and acknowledges that NCSI has no obligation to retain Subscriber Data, and that such Subscriber Data may be irretrievably deleted if Subscriber’s account is over thirty (30) days or more delinquent or if Subscriber fails to cure another material breach within ten (10) days of notice from NCSI.
p. Privacy of Subscriber Data. NCSI will not use the Subscriber Data for any purpose other than to provide Services. However, as between NCSI and Subscriber, Subscriber is solely responsible for ensuring that (1) the use of the Subscriber Data to provide Services is authorized and does not violate any third party agreements or the rights of third parties; (2) the transmission of the Subscriber Data is accomplished through means containing sufficient encryption; and (3) NCSI’s use of the Subscriber Data does not violate any laws governing the use of personal, financial, employment, or health-related information. Subscriber acknowledges and agrees that it is solely responsible for ensuring that the Subscriber Data provided to NCSI is provided in a manner that offers sufficient protection of the Subscriber Data before and during transmission to NCSI. NCSI is not liable due to any failure in transmission of Subscriber Data to NCSI.
q. Encryption. NCSI does not employ any special encryption methods. Subscriber should notify NCSI of any specific requests regarding encryption and obtain NCSI’s agreement (which it may provide at its discretion) with respect to any specific encryption measures.
r. Subscriber Contact Information. Unless Subscriber consents NCSI will not share Subscriber’s contact information with any third parties (i.e., for any commercial purpose). NCSI may turn over such information to law enforcement (with or without notice to Subscriber) or as necessary to prevent injury to NCSI, its employees or property. NCSI may from time to time send Subscriber promotional messages. Subscriber consents to such messages in advance and waives any rights under the CAN-SPAM Act or any comparable state law (e.g., Washington’s email statute).
s. Termination for Cause. Any breach of Subscriber payment obligations (failure to pay invoice within 30 days), unauthorized use of the NCSI Technology or Service, or noncompliance with any terms of this Agreement will be deemed a material breach of this Agreement. NCSI, in its sole discretion, may terminate Subscriber’s Log-in Information or use of Service if Subscriber breaches or otherwise fails to comply with this Agreement. Subscriber agrees and acknowledges that NCSI has no obligation to retain the Subscriber Data, and may delete such Subscriber Data, if Subscriber has materially breached this Agreement, and such breach has not been cured within ten (10) days of notice of such breach or if Subscriber fails to pay any invoice within thirty (30) days of the invoice date.
t. Termination for Convenience. Unless otherwise stated, either party may terminate Hosting or Licensing, or any licensing subscriptions thereunder with sixty (60) day notice. After such notice is given, services will terminate on the last day of the month in which termination occurs. For example, if notice is given on July 16th, services will end on September 30th. Assuming the client account is kept current. See item “n.” above.
u. Effect of Termination. Upon termination for any reason, Subscriber must immediately cease using the Software, Site or Services. The licenses set forth in this Agreement terminate immediately. Any license restrictions, confidentiality, non-solicitation, and indemnity obligations survive termination or expiration of this Agreement.
v. Confidential Information. “Confidential Information” means any data or information, oral or written, that relates to either party’s (or, if either party is bound to protect the confidentiality of any other person’s information, such other person’s) past, present or future research, development, or business activities, including, but not limited to, any unannounced products and services, and including any information relating to services or the technology, developments, inventions, processes, trade secrets, know how, source code, plans, financial information, customer and supplier lists, forecasts, and projections. Confidential Information also includes the terms of this Agreement. Notwithstanding the foregoing, Confidential Information is deemed not to include information that: (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the party receiving such information; (c) is rightfully communicated to the recipient by Persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto; (e) is independently developed by the recipient without use of any Confidential Information; or (f) is approved for release or disclosure by the disclosing party without restriction.
w. Nondisclosure. Each party will protect the Confidential Information of the other party from misappropriation and unauthorized use or disclosure, and at a minimum, will take precautions at least as great as those taken to protect its own confidential information of a similar nature. Without limiting the foregoing, the receiving party will: (a) use such Confidential Information solely for the purposes for which it has been disclosed; and (b) disclose such Confidential Information only to those of its employees, agents, consultants and others who have a need to know the same for the purpose of performing this Agreement and who are informed of and agree to a duty of nondisclosure. The receiving party may also disclose Confidential Information of the disclosing party to the extent necessary to comply with applicable law or legal process; provided that the receiving party uses reasonable efforts to give the disclosing party prompt advance notice thereof and provides reasonable cooperation to the disclosing party to minimize the extent or scope of any such disclosure. Upon request of the other party, or in any event upon any termination or expiration of the Term, each party will return to the other all materials, in any medium, that contain, embody, reflect or reference all or any part of any Confidential Information of the other party.
x. Non-solicitation. During the term of this Agreement and for two (2) years thereafter, neither party shall solicit for hire, or hire or advice or assist others with the opportunity to do the same, any employee of any other party, without the prior written consent of such other party.
y. Representations and Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. NCSI represents and warrants that it will provide Service in a manner consistent with any documentation promulgated by it and that Service will be free from any material non-conformity therefrom (assuming normal use and circumstances). Subscriber represents and warrants that it has not falsely identified itself nor provided any false information to gain access to Service and that its billing information is correct. Subscriber also represents and warrants that use or transmission of the Subscriber Data as contemplated in this Agreement does not and will not violate the rights of any third party or cause a breach of any agreement between Subscriber and a third party, that it shall use the Site, Software, and Services strictly in compliance with any agreements, laws, rules and regulations, and that it shall require any of its employees, agents, clients or End Users to agree to, and comply with, the terms of this Agreement prior to using or accessing the Site, Software, or Services.
z. Subscriber Indemnity Obligations. Subscriber shall indemnify and hold NCSI, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that NCSI’s use of the Subscriber Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by Subscriber of Subscriber’s representations and warranties; or (iii) a claim arising from the breach by Subscriber of this Agreement, provided in any such case that NCSI (a) gives written notice of the claim promptly to Subscriber; (b) gives Subscriber sole control of the defense and settlement of the claim (using counsel selected by NCSI, and provided that Subscriber may not settle or defend any claim unless Subscriber unconditionally releases NCSI of all liability and such settlement does not affect NCSI’s business or Service); (c) provides to Subscriber all available information and assistance; and (d) has not compromised or settled such claim.
aa. NCSI Indemnity Obligations. NCSI shall indemnify and hold Subscriber and Subscriber’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that Service directly infringes a copyright, trademark, or a U.S. patent issued as of the Effective Date; (ii) a claim, which if true, would constitute a violation by NCSI of its representations or warranties; or (iii) a claim arising from breach of this Agreement by NCSI; provided that Subscriber (a) promptly gives written notice of the claim to NCSI; (b) gives NCSI sole control of the defense and settlement of the claim (provided that NCSI may not settle or defend any claim unless it unconditionally releases Subscriber of all liability); (c) provides to NCSI all available information and assistance; and (d) has not compromised or settled such claim. NCSI shall have no indemnification obligation, and Subscriber shall indemnify NCSI pursuant to this Agreement, for claims arising from or relating to any infringement arising from the combination of the Site, Software, or Service with any of Subscriber’s products, service, hardware or business process(s).
bb. Disclaimer of Warranties. NCSI AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SITE, SERVICE, SOFTWARE, REPORTS, OR ANY NCSI TECHNOLOGY. NCSI AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE NCSI TECHNOLOGY WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE NCSI TECHNOLOGY WILL MEET SUBSCRIBER’S REQUIREMENTS OR EXPECTATIONS, (C) ANY REPORTS WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY SUBSCRIBER THROUGH THE SERVICE WILL MEET SUBSCRIBER’S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE, SITE, SOFTWARE, REPORTS, AND ANY OTHER NCSI TECHNOLOGY ARE PROVIDED STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY NCSI AND ITS LICENSORS.
cc. Internet Delays. NCSI’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. NCSI IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
dd. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM SUBSCRIBER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, THE SITE, SOFTWARE, OR REPORTS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, SITE, SOFTWARE OR THE NCSI TECHNOLOGY, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE SERVICES (INCLUDING THE REPORTS), EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR CERTAIN OTHER TYPES OF DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO SUBSCRIBER.
ee. Local Laws and Export Control. NCSI may provide services, software, and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. Subscriber acknowledges and agrees that none of the underlying information, Software, or Technology may be transferred or otherwise exported or re-exported to countries as to which the United States, Switzerland and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using Service, Subscriber represents and warrants that Subscriber is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Subscriber agrees to comply strictly with all U.S., Swiss and European Union export laws and assumes sole responsibility for obtaining licenses to export or re-export as may be required. NCSI and its licensors make no representation that Service is appropriate or available for use in other locations. If Subscriber uses Service from outside the United States of America or Canada, Subscriber is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries.
ff. Notice. NCSI may give Subscriber notice by means of a general notice on Service, electronic mail to Subscriber’s email address on record in NCSI’s account information, or by written communication sent by first class mail or pre-paid post to Subscriber’s address on record in NCSI’s account information. Subscriber may give notice to NCSI (such notice shall be deemed given when received by NCSI) at any time via first class mail at the address set forth above. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post). Subscriber and NCSI shall both designate email addresses at which they may engage in correspondence relating to this Agreement.
gg. Modification to Terms. NCSI reserves the right to modify certain terms (price, license terms, support terms) and conditions relating to Service, effective thirty (30) days such modified terms are posted at NCSI’s website or notice is provided to Subscriber. Continued use of Service after any such changes shall constitute Subscriber’s consent to such changes.
hh. Assignment; Change in Control. This Agreement may not be assigned by either party without the prior written approval of the other party. Provided, however, the following do not constitute an “assignment” with respect to NCSI: (i) transfer to a parent or subsidiary of NCSI, (ii) transfer via an acquisition of all or substantially all of the assets of NCSI, or (iii) transfer pursuant to a merger, consolidation or other similar corporate transaction with or involving NCSI. Any actual or proposed change in control of Subscriber shall entitle NCSI to terminate this Agreement for cause immediately upon written notice.
ii. Governing Law; Jurisdiction; Attorney’s Fees. This Agreement shall be governed by Washington law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Seattle, Washington. Subscriber irrevocably consents to the jurisdiction and exclusive venue in the courts of Seattle, Washington, and waives any defenses based on lack of personal jurisdiction, improper venue, forum non conveniens, or the like. In any action brought arising from or relating to this Agreement, the substantially prevailing party thereto shall be entitled to its reasonable attorney’s fees and costs.
jj. Partial Invalidity. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
kk. No Joint Venture. No joint venture, partnership, employment, or agency relationship exists between Subscriber and NCSI as a result of this Agreement or either party’s performance hereunder.
ll. No Waiver. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by that party in writing.
mm. Calendar/Business Days. Except as otherwise specified, “days” refers to calendar days and not business days.
nn. Counterparts. This Agreement may be executed in any number of counterparts, and each shall be an executed original, all comprising a single instrument. Electronic signatures intended by the person providing the same to indicate execution of this Agreement shall be valid as original signatures.
This Agreement, together with any applicable Order Form or Addendum, which is incorporated pursuant to the terms set forth herein, comprises the entire agreement between Subscriber and NCSI, and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.